The Genetic Information Nondiscrimination Act of 2008 (“GINA”) became effective in November 2009.  In recent months, the first lawsuits have been filed under the Act.  Thus, it is a good time to examine GINA’s impact on employers to safeguard against potential lawsuits.

GINA makes it illegal to discriminate against employees or applicants because of genetic information.  “Genetic information” not only includes information about an employee or applicant, such as genetic test results, but it also includes the genetic test results of family members.  Family members include dependents and certain relatives (up to the fourth degree) of an employee or applicant.  The statute specifically provides that sex and age are not to be considered genetic information.  Notably, genetic information also does not include information that a person currently has a disease or disorder.  GINA also does not prevent employers from testing employees for drug or alcohol use.

Consistent with most federal antidiscrimination laws, GINA generally prohibits employers from discriminating against employees or applicants because of their genetic information.  Harassment and retaliation are also prohibited.

In addition, employers are generally prohibited from acquiring genetic information of an employee or applicant.  There are, however, certain exceptions to the rule.  Inadvertent possession of genetic information does not violate the law.  An example would be if a supervisor overheard an employee tell another employee about his grandfather’s battle with colon cancer.  Employers are also allowed to acquire genetic information as part of the certification process under the Family and Medical Leave Act when an employee requests time off to care for a family member.

Further, an employer may acquire such information as a part of health or genetic services offered by an employer, such as a wellness program.  The employee must give written authorization to participate in the program, and the genetic information can only be disclosed to certain individuals identified in the statute.

Employers have a duty to keep genetic information confidential. Like the Americans with Disabilities Act, employers should maintain genetic information in a separate medical file.  The Equal Employment Opportunity Commission states that genetic information may be maintained in the same file as the medical file maintained for purposes of the Americans with Disabilities Act.

There are some exceptions to the confidentiality requirement.  Employers are allowed to disclose genetic information to the employee at the written request of the employee.  Genetic information may be disclosed pursuant to court order, but the amount of information disclosed must be expressly authorized by the order.  In addition, an employer is required to give notice to the employee that such information was disclosed if the employee did not have prior knowledge of the court order.  Employers may disclose to public health agencies certain genetic information that relates to contagious diseases that present an imminent hazard of death or life-threatening illness.  Other exceptions are also included in the statute.